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    Litigation Strategies

    Module 3: Combatting Online Violence Against Women Journalists

    • Strategic litigation: Strategic litigation, sometimes also referred to as impact litigation, is a method of seeking broad social change, beyond a remedy for an individual, by carefully selecting and bringing a case to court.(1) It has been used extensively around the world, including in SSA, to set progressive jurisprudence and achieve accountability for human rights abuses.
    • Challenges and opportunities: While it can be risky — with the potential for a negative judgment or unforeseen externalities — and tends to require significant investments of time and resources, it can be a highly effective way of stimulating law reform, influencing public opinion, and having a real impact on the lives of people affected by rights violations.
    • Key considerations: In assessing whether to launch litigation in a case of online violence, one should consider:
      • The outcomes sought;
      • Whether litigation can reasonably achieve these outcomes;
      • Whether the victims, survivors or affected communities will be best served by litigation;
      • What various potential paths the litigation could take; and
      • How the outcomes of litigation could be leveraged for positive social change.

    Strategic litigation in the context of digital rights and online harms poses unique challenges and opportunities that should also be considered when developing litigation strategies.(2)

    The impact of strategic litigation in Sub-Saharan Africa

    Strategic or impact litigation has played an important role in advancing freedom of expression in sub-Saharan Africa for many years. Media Defence has supported some key cases relating to journalists operating in both the offline and online realm including: 

    • Konaté v Burkina Faso (2013): the African Court on Human and Peoples’ Rights held that criminal defamation laws that imposed sanctions of imprisonment were incompatible with Article 9 of the African Charter of Human and Peoples’ Rights and other international human rights provisions. 
    • Media Council of Tanzania v Attorney-General of the United Republic of Tanzania (2019): the EACJ held that certain provisions of Tanzania’s Media Services Act relating to fake news and rumours violated the right to freedom of expression by their broad and vague wording.
    • SERAP v Federal Republic of Nigeria (2022): the ECOWAS Court held that the government’s suspension of Twitter in the country in 2021 violated the rights to freedom of expression, access to information and the media.
    • Amnesty International Togo v the Togolese Republic (2020): The ECOWAS Court held that the Togolese government violated the right to freedom of expression by shutting down the internet during protests in September 2017.

    Forums

    The selection of a suitable forum with jurisdiction is critical to the eventual success of litigation. Lawyers should consider what is effective and available at the national, regional, and international levels. Typically, regional and international fora are only available where national remedies have been exhausted or where non-binding decisions are being sought, although there are some exceptions.

    There are a range of such fora to be considered, including:(3)

    • The United Nations Human Rights Council (UNHRC);
    • The African Court on Human and Peoples’ Rights (African Court);
    • The African Commission on Human and People’s Rights (ACHPR);
    • The Economic Community of West African States Community Court of Justice (ECOWAS Court); and
    • The East African Court of Justice (EACJ).

    Each of these has its own requirements for founding jurisdiction, which must be carefully considered before launching an application or a complaint.

    Use of quasi-judicial fora

    There are several quasi-judicial international and regional fora available that can also be valuable in providing progressive opinions and guidelines for states on regulating online harms and protecting freedom of expression. 

    For example, in Nyanzi v. Uganda (2017) the United Nations (UN) Working Group on Arbitrary Detention (WGAD) issued an opinion finding that the detention of a Ugandan human rights activist for violation of the Cybercrime Act was arbitrary and a violation of her rights. The WGAD condemned the broad and vaguely worded provisions under which Nyanzi was arrested, which were said to have a chilling effect on freedom of expression in the country. 

    While the WGAD’s opinions are not legally binding, its findings, in this case, that Stella Nyanzi’s arrest and detention amounted to a violation of the rights to freedom of expression, a fair trial, the presumption of innocence, liberty and security of person, and freedom from torture or to cruel, inhuman or degrading treatment nevertheless have significant persuasive power, and states against whom opinions are made are requested to provide follow-up information on the implementation of the recommendations within six months.(4

    Jurisdiction

    Jurisdiction refers to the ability or competency of a court or forum to consider and decide a particular matter.

    Defining jurisdiction

    In the Kenyan case of Owners of Motor Vessel Lillian‘s’ vs Caltex Oil Kenya Limited (1989), the Court of Appeal at Mombasa confirmed that the term means: “The authority which a court has to decide matters that are before it or take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be extended or restricted by the like means.” 

    When determining whether a court has jurisdiction, it is important to look at several sub‑components:(5)

    • Jurisdiction ratione personae: whether the court has jurisdiction over the person of both the complainant and the respondent.
    • Jurisdiction ratione materiae: whether the subject matter falls within the scope and mandate of the forum concerned.
    • Jurisdiction ratione temporis: whether the violations occurred within a time frame that allows the forum to exercise jurisdiction. Temporal jurisdiction usually refers to whether:

      – the violation occurred after the relevant treaty establishing or granting the court authority had come into force for a particular country, and
      – the victim brought the claim before the forum within a reasonable period after the violation occurred.

    For more information on jurisdiction, admissibility and proceedings at regional fora in Africa, please see Module 6 on Litigating Digital Rights in Africa.

    Standing

    Standing refers to the ability of a party to bring a matter before the court. It involves a potential litigant demonstrating a sufficient connection between the issue and their interest in the issue. Different courts and fora may have different standing requirements, this should be considered and determined early on in strategic litigation.

    • In domestic courts, standing is determined by national law and the subject matter of the suit.
    • In regional and international courts, standing is determined by the rules of procedure of the forum.

    The table below lists some examples of the standing requirements of different fora:

    Standing in Domestic Courts

    These differ by jurisdiction. For example Article 22 of the Kenyan Constitution allows a person to:

    • act in their own interest;
    • act on behalf of another who cannot bring the suit in their own name,
    • act in the interest of a group or class, or
    • act in the public interest to institute a suit claiming that a right or fundamental freedom has been violated, threatened, or infringed.

    ECOWAS Court

    The ECOWAS Court has fairly broad standing provisions. Articles 9 and 10 of the Supplementary Protocol provide that the following litigants may approach it:

    • Member states.
    • The Executive Secretary (now the President of the ECOWAS Commission).
    • The Council of Ministers.
    • Community Institutions.
    • Individuals.
    • Corporate Bodies.
    • Staff of any Community Institution.

    African Commission on Human and Peoples’ Rights

    The ACHPR has broad standing provisions. Anyone can register a communication, including CSOs. This includes:

    • a state claiming that another state party to the African Charter has violated one or more of the provisions in the African Charter;
    • CSOs (which do not need to be registered with the AU or have observer status);
    • victims of abuse; or
    • interested individuals acting on behalf of victims of abuse. The matter can also be brought for the public good, as class or representative actions, under the actio popularis approach.(6)

    Considerations on standing: When considering whether a party has standing, it is important to consider and assess:

    • Whether an individual, community or civil society organisation is best placed to bring the matter to the court or forum?
    • Would a combination of different applicants be strategic?
    • What are the different interests in the matter?
    • What are the different risks of instituting a matter on behalf of certain parties?
    • What is in the best interest of the case and the affected parties?
    • What are the resources or capacity constraints?(7)

    Value of broader standing requirements

    The use of Kenya’s expanded standing was successful in the case of Bloggers Association of Kenya v Attorney General & 3 others ARTICLE 19 Eastern Africa & another (2020) in which the Bloggers Association of Kenya (BAKE) launched a constitutional petition challenging the constitutionality of 26 sections of the Computer Misuse and Cybercrime Act. 

    In both Article 19 v Eritrea (2007) and Law Society of Zimbabwe and Others v Zimbabwe (2016), the ACHPR underscored the significance of broader standing provisions, adopting an actio popularis approach. This approach allows individuals, NGOs, and groups with no direct relationship to victims to bring forth communications, ensuring that even marginalized victims of human rights violations can receive assistance from distant entities. While compliance with standing requirements is necessary, the ACHPR’s flexibility in allowing non-victim entities to file complaints emphasizes its commitment to promoting accountability and addressing human rights abuses across the continent. 

    Representation and Expertise

    Different courts have their own rules on representation, and in some cases, legal representation may not be mandatory. It should be kept in mind that there are a range of organisations working to provide technical and legal support to legal efforts to protect journalists’ safety and freedom of expression, which can be drawn on if needed, particularly by providing access to experienced senior digital rights lawyers. These include, for example:

    Admissibility

    • Admissibility: This refers to the process applied by international human rights fora to ensure that only cases that need international adjudication are brought before them.
    • Requirements: Usually, it is required that all local remedies have been exhausted, that consideration be given to whether there are rules relating to prescription, and whether the forum recognises the concept of ongoing harm.
    • Exceptions: There are exceptions to the local remedies requirement, such as if local remedies are non-existent, unreasonably prolonged or inaccessible, etc.(8) Notably, the ECOWAS Court and the EACJ do not require local remedies to have been exhausted before bringing a matter,(9) although the ECOWAS Court does require that the matter has not been determined on the merits by domestic courts.(10)

    Identifying the parties

    It is important to consciously reflect on and identify the most appropriate respondent in a matter, especially in cases involving anonymous or pseudonymous users or multi-national technology companies based in foreign jurisdictions. To assist in this, a litigant may seek an order from the court for an intermediary to disclose the identity of the user or to provide clarity on business structures. Law enforcement officers may also send a legal request to an intermediary requesting them to disclose the identity of the user.

    Case law examples

    In Muwema v Facebook Ireland Ltd (2016), the plaintiff sought an order directing Facebook to provide details on the identities and location of the person or persons who operated a particular Facebook page that had posted allegedly defamatory materials, or the individual posters to that page.(11) The court granted this order and directed Facebook to disclose the identity of the owner of the page on terms agreed to between the parties. 

    In South Africa, a 13-year-old girl received threatening posts from an anonymous user on Instagram. She made several failed attempts to obtain the identity of the user from Facebook. She then obtained orders from the High Court in Johannesburg directing Facebook to disclose the identity of the user but had to instruct an advocate in the United States to serve the order to Facebook at their offices in California. Eventually, Facebook complied with the order, but this came at a great cost for the plaintiff.(12

    Amici curiae

    Amicus curiae are friends of the court who, while not a main party to the litigation, instead offer advice to the court to assist in the determination of the matter. An amicus may petition the court to be granted leave to serve as an amicus or may be invited by the court to offer expertise. Thus, serving as an amicus can be an influential way to support strategic and impact litigation and to provide relevant guidance to the court, particularly on international human rights standards and comparative law, as well as by providing technical expertise on digital or technological questions.

    Each court or forum will usually have its own rules regarding the admission of amici, but often this involves proving that one’s submission will be unique and additive to the litigation.

    Domestic

    In South Africa, for example, the Uniform Rules of Court provide that for a party to be admitted as an amicus curiae, the following requirements must be met:

    •  It must have an interest in the proceedings;
    • The submissions to be advanced must be relevant to the proceedings; and.
    • It must raise new contentions that may be useful to the court. 

    South African Courts have explained that the role of amici is to draw the court’s attention to relevant legal and factual matters not otherwise highlighted. Admission as an amicus requires demonstrating an interest in the proceedings, the relevance of submissions, and the introduction of new, beneficial contentions.(13)

    East African Court of Justice

    Amici curiae are allowed to apply to be involved in a matter per Article 36 of the EACJ Rules. An application must be made by notice of motion and provide the following information:

    • A description of the parties.
    • The name and address of the amicus curiae.
    • A description of the claim or reference.
    • The order in respect of which the amicus curiae is applying for leave to intervene.

    African Court

    Amici curiae are allowed in the African Court as per Rule 45(1) of the African Court Rules, which grants the Court the authority to hear from individuals or entities deemed likely to provide assistance in fulfilling its duties. Furthermore, Rule 45(2) empowers the African Court to request any person or institution to provide information, opinions, or reports as needed. The procedure for requesting to act as amicus curiae is outlined in sections 42 to 47 of the African Court’s Practice Directions:

    • Individuals or organizations interested in acting as amicus curiae must submit a request to the African Court, specifying their intended contribution to the matter.
    • If the request is granted by the African Court, the requester will be notified by the Registrar and invited to submit their contributions, along with all relevant pleadings.
    • It’s important to note that the decision to grant a request to act as amicus curiae rests solely with the discretion of the African Court.

    Administrative considerations

    Litigation is costly, with implications for both the victim/affected party, relevant third parties, and lawyers themselves. It is important to ensure that any litigation that is pursued is adequately funded. This includes funding for all future potential stages of appeal and review.

    Litigants should also, at an early stage, consider the most effective timing for launching litigation or important milestones in the case and evaluate the staff and capacity needs — both in terms of legal support and otherwise — to ensure the case can be managed effectively to its end.

    Choice of remedy

    Another key element for consideration, particularly in terms of evaluating the substantive goals of litigation, is the choice of remedy. Depending on a country’s legal framework, online violence can be both a criminal and civil offence, which would influence the practicalities of litigation.

    Online Violence under Criminal Law

    • In Ethiopia: article 13 of the Computer Crime Proclamation, No. 958 of 2016 criminalises online activities that intimidate; threaten, or cause fear, threat, or psychological strain.(14
    • In Kenya: section 27 of the Computer Misuse and Cybercrime Act, 2018 provides for the offence of cyber harassment and imprisonment for up to 10 years. 
    • In Uganda: the Computer Misuse Act, 2011 prescribes offences such as cyber harassment, cyber stalking and offensive communications that can be used to prosecute online violence. 

    Online Violence under Criminal Law

    National law and common law can allow a victim of online violence to seek civil law remedies such as: 

    • A civil suit for defamation;
    • An order for the payment of compensation;
    • A declaration of rights;
    • A declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom; or
    • A protection order that restrains an abuser from certain behaviour. 

    Several factors influence the appropriate relief to be pursued for an online violence case, including:

    • Standard of proof: the standard of proof in criminal cases is beyond reasonable doubt, much higher than that in civil law, in which it is a balance of probabilities.
    • Responsibility of the prosecution: Depending on national law, the responsibility to prosecute is usually placed on the state, state agency or independent institution created by national law. This means that criminal prosecution may be out of reach for would-be litigants. However, one can consider whether the country provides mechanisms for private prosecution or can act for a client either by watching brief or advancing a defence in the case of an accused person.
    • Defences offered by the respondent/defendant: The available defences to the respondent or defendant will have an important impact on the prospects of success of the litigation. One should, therefore, consider the context and facts of a case to determine which defences might impact the relief being sought.

    Defence of Innocent Publication

    In Muwema v Facebook Ireland Ltd (2016), the Facebook account of a pseudonymous user published three articles about a Ugandan lawyer, Fred Muwema, on a Facebook page, which Muwema alleged were defamatory for falsely accusing him of various acts of fraud, bribery, and political subterfuge. Muema sought to have the posts removed by Facebook, based in Ireland, requests which were declined based on the argument that Facebook was not the publisher of the content and could only take down content following a valid order of court. 

    Muema brought proceedings in the High Court of England seeking an order prohibiting the publication or further publication of the content. According to the law, such order can only be granted where; 

    • the statement is defamatory, and
    • the defendant has no defence to the action that is reasonably likely to succeed. 

    The court declined to grant the order on the grounds that the defendant had a reasonable chance of success in raising the defence against defamation of innocent publication, which would mean that it had taken “reasonable care” in publishing the material. 

    Gathering evidence

    A central challenge facing proponents of safer digital spaces is the collection of admissible evidence. In sub-Saharan Africa, the ICT Policy Centre for Eastern and Southern Africa (CIPESA) reports that the quantification of instances of online GBV remains a challenge “due to several inhibitions, including the culture of silence.”(15)

    Documenting abuse

     Victims of online violence can also assist in gathering evidence by documenting the abuse they face. It is, therefore, important to inform victims of measures they can take to document their experiences. Of note in this regard are the following guidelines: 

    • Pen America has created a guide that one can use to document online harassment.(16)
    • Open Global Rights has listed an array of modules, apps and tools that seek to assist human rights activists with the collection, preservation, and verification of online evidence of human rights violations. 

    Key considerations around evidence gathering include:(17)

    • Balancing exercise: Lawyers must balance victims’ rights to digital anonymity with the anonymity of perpetrators while ensuring that evidence is admissible and collected legally.
    • Domestic laws: Gathering evidence is crucial for litigating online violence, necessitating an understanding of domestic laws on electronic evidence to tender relevant and admissible evidence to the court.
    • Experts: Obtaining specialist technical assistance may be necessary to gather and interpret digital information effectively.
    • Requirements: Legal and technical requirements must be considered by litigants and courts when assessing the admissibility of evidence, including the digital forensics procedures and tools used, the digital laboratories where analyses occur, and the qualifications of digital forensics analysts and expert witnesses.

    Gathering Electronic Evidence

    Gathering electronic evidence appropriately often requires understanding a complex puzzle of various pieces of legislation. 

    • In Uganda, for example, in addition to the Evidence Act, one must also consider the Computer Misuse Act of 2011, the Electronic Signatures Act of 2011, and the Electronic Transactions Act of 2011. Section 9 of the Computer Misuse Act, 2011 allows an investigating officer to apply to court for a preservation order for the expeditious preservation of data that has been stored or processed by means of a computer system or any other information and communication technologies, where there are reasonable grounds to believe that such data is vulnerable to loss or modification.(18
    • In Kenya, section 78A of the Evidence Act provides requirements for how the probative value of the evidence must be determined,(19) which includes assessing the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated and the manner in which the originator of the electronic and digital evidence was identified. 

    Safety and security considerations

    Potential litigants also need to consider the virtual and physical risks associated with litigating issues of online GBV, including the risk of attracting negative attention from perpetrators and their supporters. Based on this, the protection of victims/survivors of online GBV, their family members, witnesses, and any other relevant third parties, such as colleagues, should be carefully dispensed with before a matter is instituted.(20)

    This may require lawyers to deploy solutions to address safety and security concerns, deal with issues around anonymity and confidentiality, and take steps to prevent the potential re-traumatisation of the victim/survivor and other third parties.

    Example: seeking accountability for NCII

     Victims or survivors of the non-consensual dissemination of intimate images, (NCII) might consider the following practical elements in determining whether there is a legal remedy they could pursue, and how to do so: 

    • Check whether your country has a specialised legal framework on NCII or cyber harassment more broadly;
    • Check whether your country has harassment or stalking laws which could be applied to the situation, such as those regarding protection orders or cybercrime laws;
    • Determine whether domestic violence or family violence regulations could be applied to your situation;
    • Check your country’s laws on requiring electronic service providers to identify individuals responsible for online crimes, which would allow for suing the perpetrator for damages. 

    Footnotes

    1. Child Rights International Network, ‘What is strategic litigation?’ (accessible at https://archive.crin.org/en/guides/legal/guide-strategic-litigation/what-strategic-litigation.html”). Back
    2. Digital Freedom Fund, ‘Strategic Litigation Toolkit’ (2022) (accessible at https://digitalfreedomfund.org/support/strategic-litigation-toolkit/”). Back
    3. See International Press Institute, ‘A resource toolkit of laws, commitments, and mechanisms protecting press freedom in Africa’ (2023) (accessible at https://ipi.media/wp-content/uploads/2023/08/Africa-resource-toolkit-2023.pdf”) for high-level guidance on international, regional, and sub-regional treaties, protocols, mechanisms, and commitments that comprise the frameworks for media freedom, the right to access information, and the safety of journalists in Africa. See further the Pan African Lawyers Union, ‘Manual for litigating when accessing the ECOWAS Court of Justice’ (2022) (accessible at https://www.lawyersofafrica.org/wp-content/uploads/20231203_Manual-For-Litigants-Before-The-Ecowas-Court-Of-Justice.pdf”) for technical guidance on litigating before the ECOWAS Court of Justice. Back
    4. United Nations, ‘Opinions adopted by the Working Group on Arbitrary Detention,’ (accessible at https://www.ohchr.org/en/special-procedures/wg-arbitrary-detention/opinions-adopted-working-group-arbitrary-detention”). Back
    5. Media Defence, ‘Digital Rights Litigation Guide, Litigating Digital Rights and Freedom of Expression in East, West and Southern Africa’ (2020) (accessible at https://www.mediadefence.org/wp-content/uploads/2020/06/MLDI-Digital-Rights-Litigation-Guide.pdf”). Back
    6. For more on standing see Pedersen, ‘Standing and the African Commission on Human and Peoples’ Rights’ African Human Rights Law Journal (2006) (accessible at https://www.ahrlj.up.ac.za/pedersen-m-p”) and Mayer, ‘NGO Standing and Influence in Regional Human Rights Courts and Commissions’ Notre Dame Law School (2011) (accessible at https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1053&context=law_faculty_scholarship”). Back
    7. Media Defence, ‘Module 6: Litigating Digital Rights Cases in Africa,’ (2020) (accessible at https://www.mediadefence.org/ereader/wp-content/uploads/sites/2/2020/06/Module-6-Litigating-digital-rights-in-Africa.pdf”). Back
    8. Media Defence, ‘Digital Rights Litigation Guide, Litigating Digital Rights and Freedom of Expression in East, West and Southern Africa’, June 2020 (accessible at https://www.mediadefence.org/wp-content/uploads/2020/06/MLDI-Digital-Rights-Litigation-Guide.pdf”). Back
    9. Id. Back
    10. Media Defence, ‘Digital Rights Litigation Guide, Litigating Digital Rights and Freedom of Expression in East, West and Southern Africa’ (2020) (accessible at https://www.mediadefence.org/wp-content/uploads/2020/06/MLDI-Digital-Rights-Litigation-Guide.pdf”). Back
    11. Id. Back
    12. Tania Broughton, ‘Joburg teen sues Facebook for name of Insta stalker who threatened rape & murder’ (2020) (accessible at https://www.timeslive.co.za/news/south-africa/2020-07-27-joburg-teen-sues-facebook-for-name-of-insta-stalker-who-threatened-rape-murder/”). Back
    13. See for example Hoffman v South African Airways [2000] ZACC 17 (accessible at https://www.saflii.org/za/cases/ZACC/2000/17.html”) and In Re: Certain Amicus Curiae Applications; Minister of Health v Treatment Action Campaign [2002] ZACC 13 (accessible at https://www.saflii.org/za/cases/ZACC/2002/13.html”). Back
    14. Computer Crime Proclamation 958 of 2016 of the Federal Democratic Republic of Ethiopia (accessible at https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/103967/126636/F1922468791/ETH103967.pdf”). Back
    15. CIPESA, ‘In Search of Safe Spaces Online: A Research Summary’ (2020) (accessible at https://cipesa.org/?wpfb_dl=404″). Back
    16. PEN America, ‘Online Harassment Field Manual: Documenting Online Harassment’ (accessible at https://onlineharassmentfieldmanual.pen.org/documenting-online-harassment/”). Back
    17. Media Defence, ‘Module 6, Litigating Digital Rights in Africa’, (2020) (accessible at https://www.mediadefence.org/ereader/wp-content/uploads/sites/2/2020/06/Module-6-Litigating-digital-rights-in-Africa.pdf”). Back
    18. KTA Advocates, ‘Electronic Evidence, Legal Alert’, (2020) (accessible at https://www.ktaadvocates.com/wp-content/uploads/2020/10/ELECTRONIC-EVIDENCE-LEGAL-ALERT-KTA.pdf).”). Back
    19. Rutenberg, Kiptiness & Sugow, ‘Admission of Electronic Evidence: Contradictions in the Kenyan evidence Act’, 2021 (accessible at https://cipit.strathmore.edu/wp-content/uploads/2021/05/Admission-of-Electronic-Evidence-Contradictions-in-the-Kenyan-Evidence-Act.pdf”). Back
    20. European Human Rights Advocacy Centre (EHRAC) & Middlesex University London, ‘EHRAC Guide to Litigating Cases of Online Violence against Women, Domestic & Sexual Violence’, (2020) (accessible at https://ehrac.org.uk/wp-content/uploads/2021/09/EHRAC-Guide-to-Litigating-Cases-of-Violence-Against-Women-ENG.pdf”). Back